A. Introduction: Indivisibility and its Discontents
The indivisibility, interdependence, and interrelatedness (I-I-I) of all human rights is a “mantra”Footnote 1 “beyond dispute,”Footnote 2 a “bedrock” of contemporary human rights interpretation and advocacy.Footnote 3 It is affirmed by the UN General Assembly and the Office of the High Commissioner for Human Rights.Footnote 4 It is assumed that the properties of I-I-I should guide the operation of human rights practice and policy. The concept of indivisibility is “leveraged” to stress the interrelated nature of crises we face like climate change, underdevelopment, and mass poverty.Footnote 5 The indivisibility, interdependence, and interrelatedness of rights is therefore a mainstream position in the sense that most scholars in human rights have coalesced around its reality and take it as a starting point for apprehending the structure and content of international law in this area.Footnote 6
Indivisibility is generally regarded as the strongest of the three suggested supporting relationships.Footnote 7 There is no single doctrinal definition of indivisibility, tending instead to be endorsed as a self-evident fact.Footnote 8 In its most fundamental sense, indivisibility means that rights are “incapable of being divided in reality or thought.”Footnote 9 While there are numerous individual human rights with distinct substances and functions, each of these rights is intrinsic to human dignity and must be treated on the same footing as any other right without a priori hierarchy. The content of each right is inherently related to, and may causally reinforce, any other right. Any improvement in the realization of a given human right should not be at the expense of a diminution in the realization of another. Indivisibility can be roughly distinguished from interdependence (the idea that any one right cannot be realized in isolation from others) and interrelatedness (the permeability of rights categories). In both practice and theory, the three elements of the fundamentally amorphous I-I-I formulation tend to be used interchangeably and/or “bundled” as a package.Footnote 10 Indeed, all three are often simply condensed to indivisibility, a shorthand adopted throughout this Article. Some scholars have teased out the distinctions between themFootnote 11 and contentious debate has arisen as to whether indivisibility must be system-wide—all human rights have an indispensable supporting relationship—or partial.Footnote 12 However, most treatments of the “indivisibility-interdependence-interrelated” formulation conflate them in a spectrum of stronger to weaker supportive relations between one right and another,Footnote 13 as does this Article. Most “I-I-I” arguments therefore take the form of somewhat generalized and impressionistic linkage arguments where certain rights are defended because they provide indispensable, moderate or helpful support to other justified or accepted rights.Footnote 14 As Walker argues, relationships between rights are as likely to be tendential as they are to be necessary—as such, most rights relationships “become a more-or-less rather than an either-or affair … [g]raduated and selective rather than categorical and comprehensive.”Footnote 15
The classic, and most common, example of the linkage argument is where indivisibility is articulated when describing the close but historically contested imbrication of the civil and political rights (CPR) aspects of individual well-being with socio-economic rights (ESR). Indeed, the I-I-I formulation is “centrally concerned” about the relationship between these two types of rights.Footnote 16 The successful realization of CPR is argued to be practically impossible without realizing one or more socio-economic right(s), while the full implementation of the latter means the former is indispensable.Footnote 17 Typical examples include the right to healthcare contributing to the right to lifeFootnote 18, or the civil right to legal counsel buttressing the right to housing.Footnote 19
This Article concerns itself with one particular interaction of this common mutual reinforcement argument, namely that which links democratic rights that protect the right to engage in politics—assembly, association, free expression, voting, et ceteraFootnote 20—with socio-economic rights, including health, education, welfare, et cetera. For example:
Despite the fact that these rights are categorised differently, civil, political, economic, social and cultural rights are interrelated, interdependent and indivisible …. For example, if an individual is to participate meaningfully in the government of his country by making an informed decision as to who to (s)elect or whether to be (s)elected or by expressing his opinions, such an individual must have had the opportunity to be educated for it …. In order to form associations, an individual must have at least a source of income in order to permit him to participate meaningfully in such associations.Footnote 21
The idea that ESR and democracy are mutually constitutive is rationally established for some, while for others it is a “powerful intuition” or strong working hypothesis.Footnote 22 I explore this particular linkage argument for two reasons, namely (1) doubts about the efficacy of the I-I-I formulation for describing the real world of rights realization and (2) the phenomenon of democratic decline around the world.
As regards the first reason, Soiffer and Rowlands note that while the literature on indivisibility is divided into normative studies and empirical studies, the former is often presented more as an “aspirational assertion” than as a testable proposition.Footnote 23 There is a concern, one shared by this Article, that there is a gap between practical reality and political rhetoric as regards the I-I-I formulation.Footnote 24 For example, some policy actors in the developing world feel the linkage of food rights with the rights to social protection and to life makes “action more difficult” by complicating policy implementation.Footnote 25 Scholarship in the area is replete with exaggerated or insufficiently contextualized claims about the linkage between rights.Footnote 26 Scholars note the “comfortable and often-repeated claims” about indivisibility and urge deeper thought about the spectrum of possible supporting relations and possible trade-offs between rights.Footnote 27 This deeper thought may not always be welcome, however. Though the empirical record shows that strong protection of some rights is not necessarily undermined by the lesser protection of other rights,Footnote 28 some scholars evince concern that “no dissonant voices” as regards indivisibility are allowed in official UN rhetoric.Footnote 29
The creeping doubt about the empirical reality of indivisibility of combinations like ESR rights and democratic rights is compounded by a further doubt about the prospects for democracy. There has been a reversal of global democracy since the 2010s.Footnote 30 Reductions in the quality of relatively recent democratization processes in Africa and Latin America were compounded by high-profile contractions in places like Turkey, Hungary, India, and Bangladesh, to say nothing of the democratic elections of rhetorically and/or substantively anti-liberal figures like Donald Trump in the United States or Giorgia Meloni in Italy.Footnote 31 Opposition parties like France’s Rassemblement National or Germany’s Alternative für Deutschland make a virtue of their declining faith in the ability of liberal democracy to solve major problems. This creates a significantly “less conducive political environment for commitment to human rights” as authoritarian and post-liberal states band together and prove less susceptible to internal and external pressure.Footnote 32 At the same time, many authoritarian states have seen dramatic improvements in terms of public health, education, and social security. Outside the OECD world, both democratic and autocratic states—to say nothing of the many “grey zone” states between these poles—increasingly arrive at fairly similar outcomes in terms of education, welfare, and health guarantees. This equifinality calls into question any automatic equation of socio-economic rights with democratic freedoms. Scholars are naturally comfortable theorizing about the constructive role international human rights law (IHRL) plays in states where democratic accountability is the norm. However, the success of non-democratic states in improving rates of social minima—often at much faster rates than democracies at similar developmental levels—raises the question of whether the doctrine of indivisibility is premised on institutional assumptions that do not hold in much of the developing world. Given that non-democratic politics will permeate domestic efforts to protect and enforce the rights contained in the ICESCR, complacent assumptions about the indivisibility, interdependence and interrelatedness of democratic rights and ESR may preclude a proper understanding of how rights are realized in much of the globe.
The concern expressed in this Article is not without precedent. Whelan and Donnelly note that the interdependence of rights has been best realized in Western liberal democratic or social democratic states where the admixture of civil rights and social minima goes to the heart of domestic order.Footnote 33 There is a risk that a focus on indivisibility of rights in states where rights are mostly or fully implemented makes theorization less relevant to “to troubled and impoverished countries where at best rights are only partially realised.”Footnote 34 Indeed, some speculate as to whether the I-I-I framework can apply effectively in states where democratic agency is compromised by underdevelopment, administrative incapacity, or corruption.Footnote 35 This anxiety taps into a broader disquiet about the salience of human rights in a more diverse global normative landscape and economic/climactic/political polycrisis. Even if we are not experiencing the “endtimes” for human rights that Hopgood describes,Footnote 36 we are certainly in harder times than was the case during the era of exuberant human rights theorization after the Cold War in which the benevolence and applicability of human rights doctrines like indivisibility were assumed with little critical assessment. Scholars increasingly call for more complex accounts of how ideal human rights theories elaborated in favourable conditions interact with state or social practices inimical to full compliance with IHRL.Footnote 37
In a world where some democracies fail to provide ESR and where autocracies like China, Vietnam, and Oman manage to do so,Footnote 38 links between human rights and democracy and development are neither automatic nor ineluctable. Chinese public policy since the dawn of Deng Xiaoping’s reforms has been explicitly premised on the ideal that economic and political freedoms are, in fact, divisible.Footnote 39 What is the future for the concept of indivisibility in a world where human rights and democracy are separable in theoryFootnote 40 and increasingly separated in practice? Can we still maintain the indivisibility of rights to vote, assemble, and to receive information, on the one hand, and ESR on the other, in states where social minima are provided but where robust and informed debate are absent, and where decision-makers are not accountable to their people? In non-democratic states, insofar as the I-I-I formulation is evacuated of authoritarianism, conflict, and power, it risks becoming mere argot—buzzwords that carry connotations of optimism, normativity and ambition but which do not speak to many contemporary political economies.
To date, there has been no attempt to explore whether or how the “I-I-I” principle applies in non-democratic contexts. Any full theory of human rights will have to take account of both the underlap of democratic rights and ESR provision, on the one hand, and the overlap of autocracy with robust guarantees on the other. To date, there has been no attempt to do so, even amidst a growing acceptance that “rights without illusions” are more necessary than ever in underdeveloped states.Footnote 41 This Article attempts to untangle some of the strands of indivisibility in order to present its actual and potential place in an area of democratic retreat. Part B briefly surveys the history of the I-I-I formulation and recapitulates the concept of indivisibility as an intrinsic aspect of rights and as an instrumental aspect of rights realization. Part C looks at the assumed mutually reinforcing relationship between participatory rights—assembly, association, voting, free press—and ESR realization. It goes on to argue that the image of participation here is implicitly a liberal democratic model. Part D looks at the decline of this liberal-democratic model since the mid-2000s, the ability of autocratic states to realize ESR even in the absence of democratic accountability, and hence the diminishing relevance of that liberal-democratic imaginary. Part E argues that we need a more refined understanding of how political regimes, institutions, and ideology interact to produce different levels of commitment and capacity to realize ESR. There are at least three plausible responses this reality gives rise to, namely (i) to alter nothing about the way we think about indivisibility, (ii) to abandon the concept of indivisibility, or (iii) to revise the concept for a more multivalent world.
B. Indivisibility as a Concept
The Universal Declaration of Human Rights does not employ the language of interrelatedness or interdependence, but is clearly a holistic model of all rights with no sense of hierarchy or separateness. Indivisibility therefore incorporates all rights regimes, most notably those for women, children, the disabled and refugees. It has been accepted by the Inter-American Court of Human RightsFootnote 42 and the European Court of Human Rights,Footnote 43 as well as constitutional or apex courts in states like IndiaFootnote 44 and Costa Rica.Footnote 45 It is an explicit or implicit feature of Special Rapporteur reports, Human Rights Committee Concluding Observations, and General Comments by the Committee for Economic, Social, and Cultural Rights and the Office of the High Commissioner for Human Rights. Contemporary theories of human development, human rights-based approaches to development, and sustainable development require the full suite of economic, social, cultural, civil, and political rights. In the academic literature, and as noted above in the Introduction, the I-I-I formulation is a leitmotif, often repeated as an article of faith.
Indivisibility, interrelatedness, and interdependence occur within certain regimes—the right to health facilitates the right to work by countering illness, while the right to due process can buttress the right to privacy—and between regimes—the ICESCR right to housing facilitates the ICCPR right to family life. The mutually beneficial relationship implicit in interrelatedness, interdependence, and indivisibility means no one right is logically prior to another. Some links are strong—for example, the right to life and the right to security against physical attack—and some are weak—for example, Nickel notes that the right to freedom of religion does little to facilitate due process rights—to the degree that it calls into question whether indivisibility is always literally or factually true.Footnote 46
While any right is important in and of itself irrespective of any support it lends to another right—for example, the right to social security is imperative regardless of its effect on the right to food—human rights of all sorts are best understood as a complete, holistic package as opposed to a menu from which a state can choose selectively.Footnote 47 Far from ranking rights, practice and theory emphasizes the need to balance norms holistically where they conflict by ensuring clarity about the assumptions underlying the reasoning of state actors, thereby discouraging spurious or bad faith argumentation.Footnote 48 That said, dealing with rights in atomistic fashion will seldom address their root causes. People living in poverty and deprived of social minima are aware that lack of voice and power compounds economic inequality. As Yamin notes, “real people do not experience the needs or deprivations in their lives according to categories of rights.”Footnote 49 As such, both the liberty of the person and satisfaction of basic needs are key aspects of human dignity given the multidimensional nature of human well-being.Footnote 50
Most debates about the I-I-I formulation revolve around the distinction between CPR and ESR. This dichotomy is crude. In moral terms, for many theorists the intrinsic appeal of any one right is no stronger than the intrinsic appeal of any other. In practical terms, protection of all human rights requires provision of resources and a mix of both active state intervention and restraint. The ICCPR and ICESCR require both here-and-now actions and deferred implementation, rendering qualitative distinctions of category or generations otiose when applied to human lives. In legal terms, the General Assembly resolution that decided that there were to be separate Covenants confirmed that that “the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent,”Footnote 51 something reiterated in the common Preambles of both Covenants.Footnote 52 While the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights necessarily draw distinctions in their respective remits, some rights are included in both—for example, freedom to join trade unions. Some rights, like equality and non-discrimination are instead transversal to both, and the duties stemming from different rights might overlap—for example, the right to life and the right to health, the right to join a trade union, and the right of free association.Footnote 53
I. Indivisibility as a Buttress for Socio-Economic Rights
Nevertheless, while the theoretical and legal case for indivisibility is clear, what is nevertheless striking is the degree to which divisions between ESR and CPR have “hovered like an albatross” in past and present-day debates over policy prioritization, democracy, and development.Footnote 54 The historic roots lie in the false but familiar Cold War binary between supposedly “positive” ESR endorsed by the Socialist bloc and supposedly “negative” CPR upheld by the West. The focus on nascent human rights organizations in the 1970s on political prisoners and torture crystallized a greater prominence of civil and political rights over ESR in both Western civil society and foreign policy thinking.Footnote 55 It was telling that institutional and doctrinal development was very unevenly balanced in favour of civil and political rights—the CESCR only came into effect in the mid-1980s, for example, and this foundation was itself seen as an important rectification of the imbalance in supervisory arrangements between the two Covenants. As Cold War clashes over the relative importance of ESR and CPR came to a close, the UN’s Vienna World Conference on Human Rights of 1993 saw states emphasize that “[t]he international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”Footnote 56 By this time, the tripartite “respect-protect-fulfill” framework theorized by Henry ShueFootnote 57 and mainstreamed by Asbjorn Eide and others in human rights practiceFootnote 58 had already done much to solidify the I-I-I formulation by quashing the positive/negative rights dichotomy. The Optional Protocol to the ICESCR which entered into force in 2013, by virtue of opening a state-to-state complaints procedure and individual petition akin to that extant in the CPR machinery, was seen as an “ultimate vindication of the indivisibility ideal.”Footnote 59
Even though doctrinal clarifications like these are welcome, there remains concern that this “can only to a limited extent compensate for the inherent weaknesses in the regulation of economic, social and cultural rights” in policy and practice.Footnote 60 Widespread rhetoric of the “I-I-I” formulation has not squelched enduring suspicions that violations of civil and political rights are considered of greater urgency than violations of others.Footnote 61 If justiciability remains the “dominant metaphor for the overall validity” of any right,Footnote 62 then the fact that ESR are less justiciable than civil and political rights in places like Bangladesh causes much anxiety,Footnote 63 as do grossly differential levels of constitutionalization in states like Botswana.Footnote 64 International and domestic human rights NGOs still tend to prioritize CPR over ESR.Footnote 65 The systematic overemphasis in Western theory of human rights on CPR has crowded out attention to education, health, or labor rights in the present.Footnote 66 What we see is an essentially hydraulic argument—progress towards realization of ESR is seen as impossible without a “committed rejection” of the idea that civil and political rights are more important.Footnote 67 Indivisibility therefore offers a resolution to the seemingly enduring dichotomy between ESR and CPR. It is common to see indivisibility arguments take the form of a “defended” right—one that is in some way doubted or controversial, usually a form of social right—that is argued to be highly conducive to the realization of a more established “supported” right, usually civil or political.Footnote 68 Indeed, when we look closer, it is clear that ESR scholars preservatively “stress the indivisibility of human rights … in an attempt to point out that socio-economic rights are as important as civil and political rights.”Footnote 69 It is for this reason that Nickel argues that linkage arguments premised on the indispensability of socio-economic rights to the realization of civil and political rights “have been the most prominent way of defending ESRs since the 1960s.”Footnote 70
II. Indivisibility as a Buttress for Civil and Political Rights
However, the fear that states might systematically focus on implementing only one set of rightsFootnote 71 also runs in the other direction. In many states across the world from the 1960s onwards ESR were practically and rhetorically prioritized over civil and political rights. Political leaders in the so-called Second and Third Worlds argued that rights of assembly, participation, and expression would have to wait for improvement in living conditions.Footnote 72 Consequently, ESR were consciously “deployed to justify forms of authoritarian modernization and development from the top down, impinging on individual rights” found in the ICCPR,Footnote 73 most notably by developing states in Africa and Asia—contributing in part to the so-called “Asian values” debate.Footnote 74 While arguments to this effect have gone into abeyance, they still subsist in some important areas of policy. Most notably, Alston observes that many contemporary development approaches to poverty elevate redistribution over governance, neglecting civil and political rights instead of showing destitution as a composite of lack of voice as well as lack of minima.
All too often, when the situation of people living in poverty is addressed in either the development or human rights frameworks the focus is confined to issues of material deprivation and a lack of resources. The fact that their civil and political rights are also gravely compromised is ignored or mentioned only in passing.Footnote 75
Issues of bodily violence, due process and electoral violations are ignored by development actors, something that “undermines the principle of indivisibility of all human rights.”Footnote 76 By one admittedly crude measurement, development actors spend 95% of their time on ESR, to the exclusion of civil and political rights.Footnote 77 While accepting that lack of voice and unchecked power of the state leads to poverty, bodies like the World Bank fail to systematically incorporate civil and political rights into their operational policies.Footnote 78 While issues of democracy and participation are becoming more prevalent in human rights-based approaches to development, development agencies still emphasize ESR significantly more.Footnote 79 However, over time the ostensible dichotomy between ESR and CPR became recognized as negatively affecting development policy, with a corresponding need to integrate the two.Footnote 80
Indivisibility’s inherent emphasis on the bidirectionality and simultaneity of ESR and CPR rights precludes fixation on individual rights categories and takes us out of these sorts of binary debates.Footnote 81 Put another way, the logic for viewing political rights and human welfare “as a trade-off is weaker than a logic which views these as mutually reinforcing.”Footnote 82 While it is not logically impossible to realize ESR without a regime of civil-political rights and vice versa, and while relationships between the two categories run the spectrum from strong to weak support,Footnote 83 the idea that security rights found in the ICCPR and subsistence rights found in the ICESCR cannot be fully enjoyed without the other exercises significant appeal in rights theorization.Footnote 84 The most obvious instantiation of this argument, and the core focus of this Article, is the idea that democratic rights and ESR are “mutually constitutive” in the sense that socio-economic rights are of the essence to democracy and democracy is indispensable to the realization of socio-economic rights.Footnote 85
C. Indivisibility: The Relationship Between Socio-Economic Rights and Democracy
It is clear from the foregoing that scholars and policy-makers consciously try to ensure ESR-based arguments “resonate” with predominantly liberal ideas and rights discourses.Footnote 86 This is most apparent in relation to justiciability, an issue at the core of debates on the indivisibility of rights. Long-familiar distinctions drawn between ESR—supposedly positive, costly, aspirational, vague—and CPR—supposedly negative, determinative, and apolitical influenced debates that called into question whether the former could be made justiciable. To the extent that judiciaries might weigh in decisively on cases regarding education or housing or welfare, familiar “bogeymen” were invoked to challenge this—imperial judges, irrational policy prioritization amidst scarce resources, cost overruns, and an institutional incapacity to cope with the polycentricity of issues that arise from individual cases.Footnote 87 These arguments generally culminated in the equation of judicial accountability for ESR violations “with an antidemocratic rise in judicial power” that called into question the proper distribution of functions between the courts and the political branches of the state under the separation of powers.Footnote 88 Critics of ESR evinced discomfort that an unelected and minoritarian institution might decide issues with significant budgetary implications or largescale impact in a way that undermined legislative representation and popular participation in a manner that was essentially “democratically illegitimate.”Footnote 89
While the argument that ESR are not justiciable has been decisively refuted, a core aspect of this success was the ability to portray the justiciability of ESR as not merely consistent with the separation of powers, but as actively constitutive of democracy. As Bilchitz puts it in relation to these debates in India, South Africa, and Colombia, “when courts enforce such guarantees against other branches of government, they are not acting, as many would have it, in an undemocratic manner; rather, they are defending the conditions necessary for the very legitimacy of the constitutional order itself.”Footnote 90 Judicial enforcement of ESR is now argued to “deepen democracy,”Footnote 91 to form a democratic site of engagement for the public and the different branches of government,Footnote 92 and to serve as an avatar of “democratically defensible distributive justice.”Footnote 93 The empirical record reveals that legalization of ESR thrives most in in places where democracy is strongest as courts can ally themselves with civil society.Footnote 94
I. Socio-Economic Rights Build Democracy
This narrow, self-legitimating link between ESR and democratic judiciaries is now extrapolated to the entire democratic polity. Rapporteur and expert reports under the UN’s human rights special procedures systems consistently argue that the genesis of most of the violence and exclusion that underpin CPR violations are traceable to economic root causes like poverty, marginalization, resource discrimination, and denial of ESR.Footnote 95 Formal political rights to assemble, be informed, or vote are critically limited without at least minimal subsistence entitlements.Footnote 96 As the UN Committee on Human Rights put it, difficulties such as illiteracy and poverty can prevent persons entitled to vote from exercising their rights effectively.Footnote 97 It is common to see arguments to the effect that the right to education makes the voting process legibleFootnote 98 or that one is more likely to sell their vote if they are hungry.Footnote 99 In this sense, for some a threshold degree of income, healthcare, shelter, and education are political rights.Footnote 100 For others, ESR are “positively required” by the very concept of a democratic societyFootnote 101 or conceptually prior to CPR in a democracy.Footnote 102 While some, therefore, might reasonably argue that elaborate political rights are a “luxury” to those who lack subsistence,Footnote 103 indivisibility provides a rebuttal to the obverse argument—ESR “dispels the misconception that civil and political rights and freedoms are luxuries relevant only to relatively affluent societies.”Footnote 104 ESR both widen debate about how to allocate and renew resources in society and facilitate mobilization by the poor.Footnote 105 Development scholars have long concluded that the more widespread welfare is in a given state, the more robust, legitimate, and consolidated a democracy becomes.Footnote 106 A commitment to ESR takes the state beyond a minimalist, market-based democracy to one that assumes more ambitious responsibilities in the public sphere.Footnote 107
II. Democracy Builds Socio-economic Rights
The reverse argument, that democracy builds ESR, is equally prevalent in I-I-I discourse. The most famous instantiation of this position is Amartya Sen’s argument that famines do not occur in functioning democracies because the apparatus of accountability precludes policy failures that would give rise to them.Footnote 108 People who live below the poverty threshold “are disproportionately and differentially affected by practical and legal obstacles to the exercise of their right to political participation.”Footnote 109 Consequently, voting—and associated rights like those to information, assembly, association, and to hold opinions—is assumed to conduce to ESR realization for three main reasons: namely (i) the creation of incentives for politicians and parties to promote rights to housing, education, food, et cetera, (ii) as an effective institutional channel for mobilization in relation to issues of social minima, and (iii) because they open up NGO policy spaces.Footnote 110 In short, democratization of decision-making processes does much to ensure socio-economic rights form part of the state’s political calculus, particularly in relation to budgeting and economic decision-making.Footnote 111 In both the developed and developing worlds, low voter turnout is associated with disadvantageous public sector redistribution.Footnote 112 The more democratic a state is, the better its score on the Social and Economic Rights Fulfilment Index, while the surrounding liberal political apparatus is presumed to impose a “floor” below which ESR achievement will not sink.Footnote 113
III. The Dominance of a Liberal Democratic Model
What is striking about the mutually reinforcing arguments that “democracy is a necessary condition for the sustained realization of economic and social rights”Footnote 114 and that ESR help build democracy is that they are reliant on a thick, substantive, liberal account of democracy. This may be surprising given that the international human rights system is ostensibly agnostic in terms of how societies organize themselves internally. The CESCR has stated that the Covenant is neutral in terms of political system,Footnote 115 and emphasizes “participation” without reference to a specific type of inclusive political regime.Footnote 116 However, human rights theory has long been associated with a West-coded concept of democracy that is neither indigenous nor actively desired by many societies.Footnote 117 As Bodig argues, “once articulated systematically and in adequate detail, demands for human rights protection add up to a more general demand for adopting a particular (modern, democratic) model of statehood and governance.”Footnote 118 Some go as far as to posit that only within a democracy do the standards contained in human rights instruments become genuine rights.Footnote 119
This implicit model of democracy in rights theorization is one that goes beyond a formal institutional make-up with intermittent opportunities for the citizenry to endorse or reject representatives at the polls. When these bodies come to imagine such a society, “liberal democracy tends to be upheld by the international community and its institutions as the most legitimate and normatively desirable way of organizing political life.”Footnote 120 It incorporates a wide amalgam of liberal democratic ideas, practices, and relations like participation, free association, transparency, accountability, free expression, the rule of law, mutual trust, free press, diversity, and traditions of compromise. These underpin (i) active agency and/or critical consciousness of citizens in all political processes and (ii) responsiveness to the will of the people. While the ICCPR studiously avoids use of the word democracy, full realization of its norms of political participation would produce a liberal, representative democracy.Footnote 121 Here, the link between liberal democracy and human rights lies somewhere between a tautology and a complex of mutually reinforcing causal factors.Footnote 122
This imbrication in modern or Western democracy is equally in evidence when it comes to ESR realization. Sen’s aforementioned link between democracy and absence of famine is explicitly premised on what he calls “thickly democratic” decision-making institutions that revolve around free exchange of ideas and public discussion as a means to translate capability expansion into effective state action.Footnote 123 In addition, most genuine democracies are characterized by a model where citizens as principals want politicians as their agents to expend maximum effort to secure socio-economic rights under international law.Footnote 124 In advanced Western states, democratic voice is routinely advanced as the reason for expanded welfare provision.Footnote 125 In African states like Malawi, Ghana, and Zambia, states with multi-party elections and electoral turnover consistently improve levels of social minima across larger segments of the population, even amidst international pressure to reign in spending on welfare.Footnote 126 In liberal democratic Latin American countries like Costa Rica, Brazil, and Ecuador, programs of nutrition, water supply, healthcare, and education have expanded in response to electoral pressures.Footnote 127 The programmatic delivery of education, healthcare, housing, et cetera requires broad public support coalitions and active engagement, an unabashed “left version of the traditional social democratic model of politics.”Footnote 128 Indeed, some argue social democracy as a concept is rooted in fair and equal access to ESR.Footnote 129 Furthermore, the justiciability of ESR and the legalization thereof is argued to be best secured in the context of “a high quality, multiparty democracy.”Footnote 130 While civil-political and socio-economic rights tends to be realized coterminously in OECD democracies, simultaneous progress in both categories is the aspiration of “democratic developmental states” in the Global South, those that balance the autonomous institutional attributes of a developmental state with inclusive and accountable approaches to public policy making.Footnote 131
IV. An Overly Seductive Model?
On the above presentation, the theory of indivisibility, interdependence, and interrelatedness of rights is robust, bidirectional, and coincident in terms of realization—a modern democratic process both generates, and is generated by, mutually reinforcing ESR and CPR (This is so in terms of theory even if we know the practice is different—as noted earlier, states still tend to respect civil and political rights more than ESR.).Footnote 132 This seamlessness perhaps explains why indivisibility is seen by some as “a seductive formula,” one that is perhaps “a little too broad for its own good.”Footnote 133 Doubts persist that the I-I-I credo is contestable on its own terms. Qualitative examinations of indivisibility demonstrate that only some couplings of human rights are genuinely indivisible, that some states still consistently elevate one set of rights over the other, and that some rights relations are not bidirectional,Footnote 134 findings supported by a broader empirical literature.Footnote 135 Where implementation of a certain right is low quality, then that right offers little support to other rights.Footnote 136 Theorists further argue that there will be situations where rights conflict and where the indivisibility concept provides little by way of principled bases on which to accept or defend certain claims.Footnote 137 On this view, the I-I-I rhetoric risks becoming what Clifford Bob calls an antipolitics claim, a set of “unreflective utterances … to improve the right’s mobilizing power by draping it in loftiness” regardless of its unrealistic basis.Footnote 138
These doubts are compounded where all the standards of democratization are not present. Overall, as Whelan notes, the indivisibility of CPR and ESR relies on the liberal-democratic welfare state familiar in the OECD world.Footnote 139 If, as some suggest above, rights are only fully realizable where democratic governance conditions state behavior, how does indivisibility apply where electoral competition, transfers of power, pluralities of political groups, and mobilized public opinion do not exist to make governments responsive to the expression of demands and needs? As Section D goes on to show, this is the case to a greater or lesser extent in most of the developing world. Lack of democracy not only calls a theory of indivisibility into question. It draws attention to the fact that failure to observe some rights, like the rights to choose government, free speech, and free assembly, is often symptomatic of broader deficiencies on the part of states to guarantee other aspects of well-being, like those found in the ICESCR.Footnote 140 Where virtuous circles cannot be presumed, vicious ones may be present. As Baxi points out, beyond the Global North the insistence on the indivisible relation between democratic rights and ESR has seldom marked “any sustained, let alone any dramatic, amelioration of the plight of the human rights-violated ‘wretched of the earth.’”Footnote 141 This state of affairs fosters the suspicion the I-I-I formulation is merely a hortatory device that elevates selective affinities in states with which scholars are familiar over empirical reality.Footnote 142 An exploration of indivisibility in the context of democratic retreat and autocratic welfarism bears this out.
D. Democratic Retreat and Autocratic Welfarism
This Section explores the impact of global democratic retreat and authoritarian welfarism on theories of indivisibility, but before doing so it is worth noting the limits of “pre-retreat” democracy. The implicit democratic model outlined above of participatory channels for decision-making, accountability at the ballot box, and long-term programmatic provision are seldom fully realized even in functioning democracies. The consensual politics of technocratic management increasingly prevalent in Western states closes the spaces for productive dissensus that animate the democracy-indivisibility thesis.Footnote 143 Many of the most important negotiations and decisions about issues of health, education, distribution, et cetera are made in non-consultative, informal spaces as opposed to parliament. Furthermore, most modern democracies are not wholly accountable to their own citizens—multinational governance infrastructures like the EU, international financial institutions, or footloose global capital may all exercise more influence over politics than the fairest election.Footnote 144
In the public sphere, representative politics tends to cluster around the center-right and centre-left, emphasizing the interests of middle-class power-bases. Elsewhere, tax systems are oriented more towards the interests of powerful economic interests than towards accountability to a citizenry. Class or horizontal inequality are seldom the most salient distinctions drawn between organized groups. As Grugel and Piper put it, “Political/legal rights, it seems, can be more effectively claimed than social and economic rights …. [I]n democracies, governments tend to respond to the needs of certain, usually politically mobilised, constituencies rather than the very poor.”Footnote 145 Democracies are inherently short-termist insofar as the periodic necessity to win means that the immediate needs of narrow constituencies tend to take priority over long-term, integrated, and sustainable provision of public goods. Even relatively well-functioning democratic processes struggle to ameliorate ESR deprivation, inequality, and poverty, calling into question some of the core tenets of the democratic-indivisibility thesis. In weaker decmoracies, skepticism is even greater—three decades-plus of democracy in places like Malawi and South Africa have done little to address inequality and poverty.Footnote 146
I. Democratic Retreat
For all the qualms about the efficacy of the assumed link between democracy and ESR, most states do not attain even the level of functional democracy critiqued above. It is commonly accepted that the world has been enduring a recession in terms of both quantity and quality of democracy since around 2007 that has deepened to the present day.Footnote 147 In the Global North, democracies are breaking down and liberal democratic freedoms are both rhetorically contested and sometimes eroded. The first months of Donald Trump’s second presidency saw significant departures from rule-of-law norms, while “democratic erosion” in Europe continues apace.Footnote 148 In the Global South the number of electoral democracies is declining while the quality of participation remains low.Footnote 149 In Africa, for example, the “modal regime type” is one of non-competitive clientelism.Footnote 150 Here, ruling coalitions are fragmented; power is maintained more via the distribution of rents than adhesion to ideology or program. In “patronage democracies” citizens prefer the targeted benefits their patron can channel towards them over general policies for delivery of public goods.Footnote 151 Asia has seen an increase in the number of states who manipulate elections through force, fraud, and restrictions on who can run or vote.Footnote 152 While Latin America has more democracies on paper than ever before, there have been dramatic declines in terms of quality in Venezuela, Honduras, Brazil, Bolivia, Nicaragua, Ecuador, and El Salvador in the last decade.Footnote 153 The formal incentive and accountability systems we associate with democracy are conspicuous by their absence.
In some ways this represents a failure of the so-called “third wave” of democratization in the last quarter of the twentieth century, as most supposedly transitional states found themselves in a political “gray zone” between authoritarianism and democracy.Footnote 154 Many parts of the world are now governed as oxymoronic “illiberal democracies” and/or as qualified democracies with “modifiers” in places like the Philippines, El Salvador, Bangladesh, Turkey, Venezuela, and vast swaths of Africa.Footnote 155 What we see is a range of hybrid regimes, where elements of democratic governance are mixed with forms, often predominant, of autocratic rule. Their sheer heterogeneity precludes generalization, but common features are observable. Where elections occur, they may be between corrupt or clientelistic parties.Footnote 156 Elections are a “weak source of pressure for performance” absent discipline on the part of rulers.Footnote 157 Often, one party or group will dominate power with little alternation, resulting in caesaristic or plebisciarian executives.
Of course, the poor quality of contemporary democracies in the post-colonial world can be explained by historical-institutionalist factors. The effectiveness of any democracy is reliant on background institutional, economic, and cultural conditions that may not exist in many developing countries. Most of the states in the Global South that democratized from the 1960s onwards were places where development levels and other socio-economic indicators like the Human Development Index would historically suggest democracy might have severe difficulty embedding.Footnote 158 Functional democratic processes have historically been consolidated in states that have strong bureaucracies, cohesive societies, and liberal capitalist economies. As Hydén argues:
Those who are grounded in more structuralist interpretations of politics argue that democracy is a product of underlying socio-economic processes that create the conditions for the demand for democracy and respect for human rights. Pointing to the fact that these rights are foremost respected in countries that are already economically developed, like those in Europe and North America, they show that empirical research confirms the thesis that level of economic development is a significant determinant of democracy.Footnote 159
In these situations where these conditions did not obtain, the rapid liberalization ethos that underpinned democratization proved destabilizing, and could not be sustained. Subsequently, most of these democracies eroded “gradually and under legal disguise.”Footnote 160
Some now argue that a “third wave of autocratization” is emerging—though closed hereditary, military, or one-party autocracies where the executive is not subject to any electoral competition only make up around twelve percent of regimes globally.Footnote 161 Here the rules of the game are almost entirely personalized or managed through ideologically repressive apparatuses. More frequently, authoritarian, neopatrimonial, militarized, and sultanistic regimes “construct and utilize nominally democratic institutions, particularly legislatures and multiparty elections, in order to identify and manage sources of societal discontent.”Footnote 162 Competitive authoritarianism is the most common form of government outside the liberal West.Footnote 163
All of this has occurred against the aforementioned background of disillusionment in liberal democracies at how this model works for those economically left behind. This is visible in the rise of leaders like Orban, Modi, Trump, and Erdogan who are willing to (a) manipulate elections and erode executive constraints and (b) indulge populist, nationalist, and anti-immigrant sentiment.Footnote 164 For better or worse, embattled democracies of the West see a decline in their ability to persuade or sway as illiberal powers like China and Russia challenge them for influence.Footnote 165 The Western model of modernity comprised of democracy, human rights, and the rule of law “is increasingly challenged by alternative models outside and beyond ‘the West.’”Footnote 166 The temptation on the part of liberal scholars, as Hout and Hutchison note, is to vaguely assume or hope the growth of authoritarianism and/or non-liberal projects of modernity will somehow be overcome.Footnote 167 It cannot be wished away. Indeed, the democracy-autocracy binary that has historically underpinned political analysis—and that has often been an explicit or implicit feature of indivisibility theorization—has for some lapsed in importance because it tells us little about how rule is carried out in relation to issues like pandemics, trade, and—most saliently—the provision of social minimaFootnote 168
II. Welfarist Autocracy
If we accept that development is a necessary precursor to ESR, or even that they are mutually-reinforcing, then any automatic linkage between ESR and democracy is called into question. Many authoritarian and quasi-democratic states take it as axiomatic that improved development performance requires the “insulation of policymaking and implementation from arbitrary political interference…. From this perspective, subjecting politicians to greater social pressures through democratization may seem, at best, to miss the point.”Footnote 169 The fact that democracy is short-termist, disperses power, and slows decision-making also complicates developmental projects for the broad, long-term good.Footnote 170 Authoritarian regimes confident in the stability of their rule can, and often do, adopt longer time horizons in terms of institution-building and social investment.Footnote 171 Performance in areas like health, housing, and education might better be ensured through hierarchical performance mechanisms than through diffuse electoral accountability. Even at the height of global democratization, it was clear that democracies do no better than non-democracies in terms of poverty reduction, and some non-democracies are among the strongest performers in this regard.Footnote 172 As Khan notes, no state developed good governance capabilities that permit the delivery of widespread public goods we see in democratic states before they developed.Footnote 173 As a result, development agencies have “moved away from the certainties of the good-governance agenda” and instead prefer more realist or best-fit approaches to governing elites.Footnote 174
Authoritarian and quasi-democratic states have been successful in pursuing pro-poor development. By this is meant three things, namely (i) the reduction in mass poverty through improvement of living standards, (ii) structural economic reforms to increase access to economic resources and so reduce inequalities that sustain impoverishment, and (iii) the direction of economic growth and other aspects of the developmental agenda to benefit the poor more than the non-poor.Footnote 175 It can be contrasted with “human-rights-based approaches to development” on the basis that aspects of the latter like participation, empowerment, and legal accountability are largely discounted in terms of relevance.Footnote 176 Though pro-poor development is largely dependent on economic growth, its proactivity is best understood in contrast to more passive “trickle-down” development which assumes a passive diffusion of the benefits of this growth to all elements in society. The focus is less on income than on direct expansion of access to other essential services.Footnote 177 To the extent these services expand, this is considered pro-poor growth. This is so even if one service—for example, education—expands while another does not or improves at a slower pace, though most pro-poor development accepts that that poverty is a multidimensional concept involving a complex set of deprivations. East Asian developmental states of both capitalist and socialist hues have significantly expanded health, education, and other minima.Footnote 178 Between the 1960s and the 1980s, undemocratic South Korea paired economic growth and a good record on ESR with a strikingly poor record on CPR.Footnote 179 Since the 1980s, China has achieved spectacular success in reducing poverty and improving rates of education, welfare, and health while consciously eschewing competitive democratic elections and liberal freedoms. The comparison of the lower rate of ESR realization in democratic India—the paradigmatic failure being that of the right to sanitation under Article 11 ICESCR’s right to an adequate standard of living—with more authoritarian China is something many find instructive in the last twenty years.Footnote 180 As Moyn notes, one of the major challenges for contemporary human rights theorizing is the fact that Chinese authoritarian capitalism has “fulfilled far more aspirations to basic social protection from the most abject misery than any legal regime or political movement expressly devoted to them has ever achieved.”Footnote 181 The comparison now extends as far as industrialized and consolidated democracies. As Birchall argues,
[W]hile less wealthy East Asian states have built extensive social housing and high-speed rail networks, eradicating hunger and vastly improving access to healthcare, Western counterparts were reducing access to affordable housing, degrading healthcare and job security, and failing to make social improvements, all the while extolling their human rights credentials.”Footnote 182
One must be careful not to overly praise these developments in the fastest-developing autocracies. While economic growth has facilitated improvements in rights-realization rates in areas like education and health, other rights are limited by the exigencies of global competitiveness that have generated that growth. For example, in China the ICESCR Article 7 right to just and favorable conditions of work goes largely unrealized under exploitative labor regimes regulated via increasingly capitalistic relations of production.Footnote 183 The same can be said of rising developmental autocracies like Vietnam.Footnote 184
Elsewhere in the world there are substantially pro-poor and socially inclusive authoritarian regimes.Footnote 185 None of the main African states that brought in food security measures in the seventies and eighties were liberal democraies, but were instead revolutionary or technocratic autocracies committed to ideals of social welfare.Footnote 186 Today, the resolutely undemocratic Rwanda has dramatically reduced maternal mortality rates.Footnote 187 Indeed, reservations about the relatively high performance of undemocratic states like Rwanda, Ethiopia, and Uganda in areas like primary education enrolment, access to safe water, and under-five mortality “feeds into the current debates on the limits of liberal democracy and its capacity for fostering economic development.”Footnote 188 Long before this, the specter of Cuba, with life-expectancy and child-mortality rates comparable to those of the United States, posed broader questions for indivisibility and the rights-democracy link insofar as it may have shown it is possible to fully implement ESR without coming close to implementing the full suite of CPR.Footnote 189 Both closed and competitive authoritarian states build their legitimacy via the distribution of benefits,Footnote 190 preferring this performance legitimacy to repression and co-optation of populations. Indeed, insofar as autocratic states maintain this legitimacy through social assistance, education, and health, they do so as a conscious trade-off of development progress against political freedoms.Footnote 191
Of course, doing well on ESR indicators is not the same as having a robust rights culture. It is axiomatic that authoritarian or quasi-democratic states seldom permit independent courts to weigh in on the making of public policy or to hear thoroughgoing rights claims. Rights theorists might reasonably argue that the passive enjoyment of better shelter, education, health, and welfare is not the same as individual, claimable rights vidicated in a court of law. For others, promotion of ESR through political and/or administrative channels is enough even in the absence of claimable justiciability—“even advocates of a robust role for the courts allow that litigation alone will not suffice to ensure the realization of ESR.”Footnote 192 On this view, “good democratic governance is not a necessary condition for the productive application of rights perspectives.”Footnote 193 The reality, as Langlois puts it, is that human rights and democracy are separable—while you cannot have democracy without human rights, you can have human rights, though certainly not all of them, without democracy.Footnote 194 After all, since the dawn of the UDHR, non-democratic states have signed up to human rights instruments, while the recognition of human rights has never been dependent on a state enjoying a democratic apparatus.Footnote 195 As he goes on, “a state merely has to see the adoption of any given human rights instrumentality as desirable: the regime does not have to be democratic, it merely has to be open to the pursuit of human rights norms.”Footnote 196
To point this out is not to advance any claim about a general advantage of authoritarianism rule over democratic accountability. The success of states like China, Vietnam, or Bangladesh in improving ESR indicators is found in history and circumstance, as opposed to any intrinsic superiority of repressive governance. Authoritarian rule is often more an excuse for corruption and chauvinism than a platform for development, and even the best-intentioned autocrats fail to generate growth or improved public institutions. Even where they do, there may be a point at which authoritarian developmentalism becomes more a burden than an asset, particularly where more straightforward logistical challenges—for example, building hospitals, building schools—give way to more complex “transactional” challenges like actually reducing maternal mortality or improving learning.Footnote 197 If there was any automatically positive correlation between autocracy and ESR realization, then many Latin American and African states would be clustered near the top of rights-realization indices. In the same way, observations about some of the weaknesses of consolidated democracy or hybrid democracies are not intended to undermine the broader case for democracy in this era of global democratic retreat. Democracy has led to inclusive development in places as diverse as India, Costa Rica and Mauritius.Footnote 198 There is no reason in principle why democratic responsiveness and accountability would not enhance the effectiveness of a state in development.
One does not have to personally accept that there are trade-offs between democracy and ESR in much of the world. However, one does need to accept that in many states across the globe, this trade-off is taken as axiomatic and forms the basis for the domestic political economy in which ESR will be realized. As one scholar puts it, the success of authoritarian states may not “fracture” the I-I-I principle, but leaves ample room to debate it, disagree with it, or challenge it.Footnote 199 There is nothing new in this. As noted earlier, the Whiggish treatment of the “I-I-I” principle in contemporary rights theorization masks earlier debates about the link between CPR and ESR. The so-called Asian Values debate revolved around the question of whether authoritarian development models could be permitted to trump the rights associated with liberal democracy. The present-day success of resolutely authoritarian governments like China and Vietnam in achieving better health, education, and welfare for their people means this question endures.Footnote 200 The admittedly partial success of authoritarian welfarism and the struggles of democracy in realizing ESR examined in this Section reinforce the call elsewhere for exaggerated indivisibility claims to be eschewed, particularly in the context of developing states.Footnote 201 How then might we rethink the “I-I-I” formulation?
E. Indivisibility in an Uncertain Future
The ICESCR was designed on the premise of a mid-century modernization theory which assumed post-colonial states around the world would converge on a model of high state capacity capable of progressively realizing the rights contained within. By the 1980s, it was apparent that few states outside Asia achieved this modernization.Footnote 202 In the 1990s, participation replaced modernization as the route to rights realization when the concept of indivisibility became mainstreamed in an era of democratic triumphalism. From the mid-2000s to the present day, this End of History triumphalism has given way to a global polycrisis, characterized by metastasizing global and domestic inequality, the rising cost of living, a pandemic, mistrust of authorities, the rise of far-right nationalism or neo-fascism, and the retreat of the West from its assumed global moral leadership, to say nothing of the growing autocracy noted throughout this Article. As Marks notes, inherited romantic narratives of human rights are inadequate to the present moment—the “well-meaning tale of vindication and deliverance needs interruption…. [T]he forward march of progress is unsettled by a more complex and uncertain rhythm.”Footnote 203 Some now fear the human rights project is “too superficial to thrive” amidst Western hegemonic decline and the reality of multiple modernities, most notably those premised on illiberal development models.Footnote 204 States adopting authoritarian or quasi-democratic models lack the accountability and responsiveness of fully democratic regimes, but can avail of some of the advantages of authoritarianism like concentration of decision-making power, long-term decision-making, and bureaucratic discipline. Varied experiences of structural economic change outside the OECD world provide a basis for systematic reflection on what matters and what does not beyond a rote insistence on the inter-relatedness of rights. The motivation to provide social minima extends beyond, or completely eclipses, a democracy-infused rights logic—regime survival, nationalism, patronage, and other things may all exercise more influence over state policy-making.
We need fresh thinking about the implications of these insights for the concept of indivisibility. Given the large number of cases in which ESR have been realized under conditions of qualified democracy or autocracy, and the scant attention it has received in the existing literature, I posit that future studies must deepen our theoretical understanding of the non-democratic dynamics that drive provision of health, education, and welfare. This fresh thinking may require us to think in unconventional ways about political regimes and ESR outcomes. There are at least three plausible responses this possibility gives rise to, namely (i) to alter nothing about the way we think about indivisibility, (ii) to abandon the concept of indivisibility, or (iii) to revise the concept for a more multivalent world.
I. Change Nothing
The struggles this Article has explored might be considered challenging for the concept of indivisibility, but not existential. It is not axiomatic that altered causal conceptions about the link between democratic participation and provision of social minima should qualify, much less negate, principled conceptions. The present failures of democracies to improve ESR realization might be understood as reinforcing the reality of progressive realization under Article 2(1) ICESCR where states must take steps, using maximal available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant. Similarly, the present success of autocratic states in realizing ESR might be understood as a chimera. For those who believe human rights can only be secured in a democracy, there is a principled argument that soi disant human rights provided by an authoritarian regime are less genuine rights than they are privileges, whims, or gifts.Footnote 205 As such, this also does not call the principle of indivisibility into question.
As noted earlier, the idea of indivisibility, interdependence, and interrelatedness exerts intuitive moral appeal, so much so that imagined trade-offs like undermining political rights to improve socio-economic well-being are rigidly rejected in international human rights law.Footnote 206 Furthermore, the unease with anything that implies an acceptance of authoritarianism is something worth preserving in maintaining the field’s moral clarity. Even if it is not always factually or causally true, we can understand indivisibility as what Kaldor calls a “stylized fact,” where theorists can emphasize broad tendencies over individual, and sometimes controverting, detail.Footnote 207 Indeed, it is arguable that this already is how we understand indivisibility. As Quane notes, indivisibility is asserted as a self-evident principle without reference to any supporting factual or theoretical matrix.Footnote 208 A stylized fact like indivisibility can be—and, indeed, seems to be—applied on an “as if” basis whereby the theorist or advocate constructs a hypothesis that could account for a supposition like the I-I-I formulation without automatically committing herself on the accuracy of the facts or tendencies thus summarized.Footnote 209 As Hirchman notes:
[S]tylized facts, either implicitly or explicitly, serve as normative claims that the particular regularities identified are the ones most important to study and are preferable to other potential characterizations of the evidence…. Stylized facts are not full-blown explanations or theories, nor are they simple reports of a set of specific facts. Rather, they are lightly theorized descriptions—theories of what is and what is not worth noticing.Footnote 210
Understanding indivisibility as a stylized fact in this way makes it less a robust causal claim than a simple association that calls to be explained.Footnote 211 It allows us to concentrate on those empirical regularities where indivisibility is true, or might be true, like social democracies in the Global North or developmental democracies of the Global South, without being unduly troubled by “troublesome individual cases” like those we see in illiberal developmental states.Footnote 212
It will come as no surprise to readers of the Article that the option of changing nothing does not find favor. Failing democracies and efficacious autocracies are not “troublesome individual cases”—they constitute most of the states containing most of the people in the world. While it is important to have empirical and theoretical models of the link between democracy and socio-economic rights, in much of the world waiting for democracy means waiting forever. As Nickel argues, “restricting claims about indivisibility to those countries where rights are fully realized means that these claims will have little relevance to troubled and impoverished countries where at best rights are only partially realized.”Footnote 213 As noted in Section B, the indivisibility thesis is coming under increasing pressure. Rote invocations of the “I-I-I” mantra have come to substitute for critical thinking on the matter. A pristine understanding of indivisibility as it might apply in Denmark or Canada leaves a gap in our understanding of the politics of rights realization in Cambodia or Yemen.
II. Reduce Reliance on the Principle of Indivisibility
The failure of indivisibility to have anything to say about (a) those states where democracy is unresponsive to need or (b) those states where autocracy guarantees health, education, and welfare, has left the theory open to the accusation that the I-I-I credo is more an intellectual artifact than a norm that can meaningfully inform policy. The concern that philosophies of rights, like indivisibility, “risk formulating normative principles that offer little practical guidance because they fail to take into account current social realities” is a real one.Footnote 214 Few argue that indivisibility should be abandoned as a concept overall. However, Hannum holds that the rhetorical insistence on the I-I-I principle is “not realistic in theory or practice,” positing that the relatively diffused concept on indivisibility is less immediately useful than a targeted focus on the most feasible and/or fundamental rights.Footnote 215 Such an approach would have the virtue of speaking directly to both Western states that try to buttress their democratic norms even amidst declining performance in terms of ESR and to autocratic states that advance the citizen’s socio-economic welfare while watering down or eroding political freedoms. Along similar lines, Nickel argues indivisibility should assume a diminished role in interpretations of human rights compliance on the grounds that the blanket rejection of the hierarchical ordering of human rights is insufficiently sensitive to the difficulties of implementation in the most adverse circumstances, where competing interests or competing claims—between, for example, democratic freedoms and state planning—may not be reconcilable and may have to be traded off against one another.Footnote 216 The adverse circumstances he refers to will often be those illiberal developing states where the assumed role of democracy in catalyzing support for socio-economic rights is eschewed by states that either valorize strongly centralized, technocratic, or instrumental approaches to human welfare, or largely neglect human welfare. As he puts it, “claims about the indivisibility and interdependence of human rights have much less relevance to developing countries than is generally realized” given that the quality of implementation of any right or category of rights will often be low and therefore insufficient to contribute significantly to any other.Footnote 217
It is submitted that dispensing with, or severely reducing reference to, indivisibility would throw a rather precious baby out with the bathwater. Relevance is not merely a matter of empirical reliability—there will always be a role for an aspirational theory that links political and economic rights. Civil society in the developing world speaks about the cousinhood of political and economic rights because the links between the two are plausible even if they are not automatic. That said, history shows that it is immensely challenging for polities to reconcile the growth and redistribution that underpin ESR with the competitive and open politics that characterize CPR.Footnote 218 The scope for ESR and CPR to mutually inform each other will be determined by the interactions between political processes and economic variables that will not mimic models familiar to Western rights theorists. A better approach, therefore, might be one rooted in critical approaches to international human rights law, an approach that embraces “paradoxical thinking, willing to live with the full contradictory promise of rights, and accept the ambivalence inherent in them.”Footnote 219 It is to this that attention now turns.
III. Half a Loaf: Qualifying the Indivisibility of Political Freedoms and Socio-Economic Progress
Based on the foregoing, it is submitted that theories of indivisibility will be richer if we admit the possibility of a more nuanced political economy of rights realization beyond the oversimplifications of the I-I-I formula or rhetorical preference for democracy. Scholars examining the politics of human rights realization argue that ICESCR principles like “by all appropriate means” or “progressive realization” should be subject to a degree of “contextual pragmatism” when applied or interpreted.Footnote 220 This type of pragmatism has long been in evidence in development circles, which of necessity have eschewed prior insistence on good governance and democratization to work with alternative forms of political organization that generate incentives to provide public goods like clean water or rudimentary social insurance.Footnote 221 Some scholars have argued international human rights theory must follow. As Ingram puts it:
[A]lthough democracy might be the best (and only) empirically effective remedy to these threats, there does not appear to be any conceptual necessity for its being the sole institutional form that a legitimate human rights regime must assume…. combining the moral idea of equal individual human dignity with practicalities does not justify the logical necessity of liberal democracy.Footnote 222
Qualifying the assumed link between political and economic freedoms does not serve as an endorsement of illiberal rule, but it does reflect a more adequate conception of elite political behavior than was the case at the height of the good governance and indivisibility agendas of the 1990s and 2000s. Particularly in non-democracies, it might be preferable to qualify critiques of human rights performance with realistic or pragmatic bargaining strategies, particularly where these states are making genuine progress in terms of social and economic human development.Footnote 223 Those who do the most to undermine elections or media freedom may prove to be the most effective agents in extending schooling or generating rural employment, even if they are motivated more by growth or regime survival than the provisions of the Covenant. A rigid insistence on the indivisibility of rights does not help us better understand human elements of ESR realization in states with minimal political freedoms—how meanings are contested, how projects are committed to, how policies are translated into local contexts.
The lack of socio-economic rights is often attributed to a lack of “political will.”Footnote 224 Drèze argues that we do not have an adequate account of how political will is formed in democracies where that will often fails, as noted earlier,Footnote 225 but this is doubly the case in non-democracies. Political-economy analysis in the development literature has been identified as one place where human rights scholars and policy-makers might look for a better understanding of the concept in illiberal states, but this involves a conscious qualification of the legalistic and ideational language of ESR theory.Footnote 226 A world where democracy is in retreat puts a premium on what development actors call working with the grain. As such, it might call for greater flexibility about familiar rhetorical modes like the “I-I-I” formulation—legal principles like this might be used tactically, and, perhaps, sparingly, as opposed to dogmatically.Footnote 227
What all of this requires is that we think of indivisibility in terms of relative outcomes, as opposed to absolute rules, of certain causal relationships between rights as desirable as opposed to necessary. There is some evidence of movement in this direction in the literature. Erman, for example, argues that it is a misapprehension to understand human rights of any stripe and democracy as mutually implied or existentially imbricated with each other. It may be more profitable, she argues, to see them “as two separate normative ideals, which under certain circumstances are strongly related, instrumentally or intrinsically, whereas under other circumstances they are not.”Footnote 228 On this basis, it is plausible to argue that the universality of rights is not necessarily eroded by lesser protection of one right or set of rights—for example, political freedoms—compared to others like the socio-economic minimum core.Footnote 229 Accepting the reality of some trade-offs, and identifying them, may help us ascertain which state actions must be accepted as a matter of realpolitik and which are genuinely beyond the pale.Footnote 230 Of course, the context of human rights realization in illiberal democracies or autocracies rarely manifests so overt a trade-off, but states do often argue that political freedom must await economic development. Cognizant of this reality, some argue that we should be open to the possibility of limited disaggregation of indivisibility claims—the achievement of human rights is a matter of incremental progress, wherein “failure to achieve everything in the domain of human rights … is not, as such, a failure to achieve anything.”Footnote 231 In democracies-with-adjectives or autocracies, any capacity for citizens to determine the content of their socio-economic rights or to hold their governments may be residual, at most. However, international human rights law almost always necessitates a balance between conflicting normative priorities and principles, a balance the rhetoric of indivisibility, interdependence, and interrelatedness cannot adequately incorporate.Footnote 232 It may be time to at least partially denaturalize the received legal and theoretical wisdom about the links between democratic freedoms and human welfare.
F. Conclusion
As Keefer notes, “Many democracies fall short of many autocracies in the provision of public services or the protection of human and economic rights…. Understanding this puzzle is of increasing importance.”Footnote 233 It is questionable whether the concept of indivisibility of rights helps us to understand the puzzle. There are of course good reasons for the faith in the I-I-I principle. Much of the rhetoric around indivisibility was enunciated as a conscious response to criticisms of the perceived deficiencies of the ICESCR and the supposedly flawed nature of socio-economic rights.Footnote 234 In many parts of the world, economic impoverishment and political disempowerment are two sides of the same coin.Footnote 235 It is intellectually and legally defensible to argue that there is no logical priority of one category of right over another, and that there should be no hierarchy where one is elevated above the other. The language of indivisibility has commendably hardened the currency of ESR in international and domestic rights theorization.
Of particular concern in this Article is the ritualistically affirmed indivisibility of ESR and those civil and political rights associated with democracy. The theory of indivisibility is theoretically plausible to the extent it reflects the classic assumption that democratically elected governments are more responsive to demands for ESR because they foster competition and participation. So powerful is this imagery that it has led to indivisibility’s interpretative and semantic drift towards the liberal and social democracy models of the modern constitutional state.Footnote 236 Modern democracy is attractive, connoting—and often realizing—representation, empowerment, responsive decision-making, and redistributive economic outcomes. Human rights and democracy are conceptually inseparable insofar as they express core assumptions of liberalism.Footnote 237 While that is the theory, it does not reflect the practice in much of the world. States that enjoy democratic freedoms have “largely neglected issues of economic justice—basic needs such as access to food, shelter, medical care, and housing.”Footnote 238 Perhaps more troublingly for indivisibility theorists, many autocracies and illiberal democracies have rapidly expanded the provision of public services and the protection of ESR over the last thirty years while denying and undermining political freedoms respectively.
It is this reality, that different categories of rights may not sustain each other and may instead exist in splendid isolation, which has given rise to the worry that the language of indivisibility is “an intellectual stopgap and a political dead end.”Footnote 239 Claims about indivisibility are imprecise and fair-weather. Little thought has been given to whether and how indivisibility applies in unfavorable conditions where states do not enjoy the facilitative institutional, economic, and social conditions for democracy. This is all the more concerning in a world where Western democracies, themselves embattled, are less likely to acknowledge or criticize democratic backsliding.Footnote 240 As Hopgood, Snyder, and Vinjamuri note, many states outside the West represent “hard cases” lacking the scope conditions for the success of conventional mainstream approaches to rights advocacy.Footnote 241 These hard cases call for distinctly pragmatic responses—the interaction of human rights and democracy may require study outside those progressive frameworks in which they were initially developed.Footnote 242 This Article explored three possibilities for this. The first is to leave the concept of indivisibility untouched, treating it essentially as a “stylized fact” by insisting on its relevance in all conditions, even in states where civil and political rights have little prospect for realization but where ESR become consolidated. This option was rejected. Critics increasingly note that the concepts of indivisibility, interdependence, and interrelatedness “are rarely elaborated or translated in concrete ways.”Footnote 243 Refusal to adapt these ideas to states outside the world of functional democracies can only substantiate this critique. The second option is to significantly reduce reliance on indivisibility in rights theory. However, this is to go too far, losing indivisibility’s ability to both capture what it means to be “fully human” and to reconcile the state’s character as the biggest threat to, and facilitator of, human rights.Footnote 244
The final, and preferred, option is to qualify the notion of indivisibility in quasi-democracies and autocratic states, particularly where these states do in fact deliver on the rights contained in the ICESCR. As Koskenniemi notes, rights theory will struggle to inform or catalyze better responsiveness if it assumes a pre-existing harmony where none exists.Footnote 245 The assumption of harmony has largely informed the theory of indivisibility, but it does not tally with the experiences—or, indeed, ambitions—of many states. In states that genuinely foster socio-economic rights but eschew or postpone civil and political rights, there may be a viable argument “that in certain circumstances and at certain times, a two-speed approach to human rights implementation may not only be possible, but necessary.”Footnote 246 This does not mean endorsing or downplaying the importance of rights to free speech, free expression, and to vote, but it may help us re-envision the interactions between CPR and ESR that have proven far more fraught and disconnected than indivisibility theory has hitherto allowed. At various points the link between the two is complementary, competitive, alternative, and sequential. The struggle for human rights is always a compromise between utopianism of the sort we see in indivisibility theorization and the realism, or realpolitik, of states engaged in policies for human betterment in radically imperfect ecologies. The dominant democratic paradigm is not a particularly useful guide to understanding ESR progress in much of the world. There are a broader range of options for rights-realization under illiberal forms of governance than the indivisibility paradigm assumes. We must revise our assumptions as their imperfections become clear.
Supplementary material
The supplementary material for this article can be found at https://doi.org/10.1017/glj.2025.10163.
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